Item H8
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: October 21. 2009
Division: Growth Management
Bulk Item: Yes -1L No
Department:
Staff Contact PersonlPhone #: Susan Grimsley
Ext. #2517
AGENDA ITEM WORDING: Approval of the fust amendment to the Ground Lease Agreement and
to the Commencement Date Agreement between Monroe County and Park Village, LLC to extend the
term to 100 years and eliminate the annual $10.00 rent in order to comply with FS196.199(2)(b) to
carry out the original intent of the parties in regard to the property tax liability of the unit owners and to
benefit the unit owners by allowing a homestead exemption and all other exemptions allowed by law.
ITEM BACKGROUND: The property appraiser discovered that the lease terms inaccurately reflect
the intent of the parties and tax the improvements (homes) on the property as tangible personal
property instead of real property. The benefits of homestead and other statutory exemptions are not
available because of the structure of the lease. The improvements on the property will be assessed as
real estate if the lease is for 100 years or more instead of 99 years, and if no rental is paid by the Lessee
or subsequent lessees. This protects the County and the Tax Collector by allowing delinquent taxes to
be collected using the tax certificate method.
PREVIOUS RELEVANT BOCC ACTION:
July 19,2006 - BOCC approved Agreement for Sale and Purchase
July 19,2006 - BOCC approved 99 year Ground Lease Agreement
April 18, 2007 - BOCC approved Commence Date Agreement
CONTRACT/AGREEMENT CHANGES: nla
ST AFF RECOMMENDATIONS: Approval
TOTAL COST:
nla
INDIRECT COST:
BUDGETED: Yes _No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
AMOUNTPERMONTH_ Year
No
APPROVED BY: County Arty -L OMBlPurchasing _ Risk Management_
DOCUMENTATION:
Included x
Not Required_
DISPOSITION:
AGENDA ITEM #
PREPARED BY AND RETURN TO:
SPOTTSWOOD, SPOTTSWOOD AND SPOTTSWOOD
500 FLEMING STREET
KEY WEST, FL 33040
FIRST AMENDMENT TO GROUND LEASE AGREEMENT AND COMMENCEMENT
DATE AGREEMENT
TillS FIRSTAMENDMENT TO GROUND LEASE AGREEMENT AND
COMMENCEMENT DATE AGREEMENT, dated this _ day of ,2009, by and
between MONROE COUNTY, a political subdivision of the State of Florida (hereinafter referred
to as "Lessor"), and PARK VILLAGE, LLC, a Florida limited liability company (hereinafter
referred to as "Lessee"):
WITNESSETH
WHEREAS, Lessor and Lessee entered into that certain 99-year Ground Lease Agreement
dated July 19, 2006 and approved by the County Attorney July 13, 2006, for the property more
particularly described therein (hereinafter "Property") for the construction and development of forty
(40) affordable housing units (the "Affordable Housing Units"), said Lease being recorded in
Monroe County Public Records at Official Records Book 2242, Page 754 (collectively hereinafter
"Lease"); and
WHEREAS, the parties entered into a Commencement Date Agreement dated the 18th day of
April, 2007, confuming various dates relating to the Lease, recorded in the Monroe County Public
Records at OR Book 2288, at Page 149; and
WHEREAS, it was the agreement of the parties that Lessor would not charge Lessee (or its
assigns or sublessees) rent, but in drafting the Lease an Annual Base Rent in the amount of TEN
AND NOll 00 DOLLARS ($10.00) was included in the Lease as said language was considered usual
and customary for consideration in a deed or lease but it was not the intent of the parties for there to
be any rent paid; and,
WHEREAS, the parties wish to correct this error in the Lease; and
WHEREAS, Lessor and Lessee are authorized to amend the Lease pursuant to Section 20.03
so long as said amendment is in writing signed by the Lessee and Lessor; and,
WHEREAS, Lessor and Lessee desire to amend the Lease to provide that there shall be no
rent payable under the Lease, the intent being that the Lease will comply with Florida Statute
196. 199(2)(b ); and,
WHEREAS, Lessor and Lessee desire to amend the Lease to also provide that the initial
term shall be one hundred (100) years; and
WHEREAS, the parties desire to enter into this First Amendment to Ground Lease
Agreement and Commencement Date Agreement (hereinafter "Agreement") pursuant to the terms set
forth herein.
NOW, THEREFORE, in consideration of mutual covenants and obligations contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned parties agree as follows:
1.
reference.
The recitals contained herein are true and correct and incorporated herein by
2.
The Lease is presently valid and in full force and effect.
3. Section 3.01 of the Lease is hereby amended to provide that the term of the Lease
shall be one hundred (100) years, commencing on the Commencement Date, and ending one hundred
(100) years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter
provided (the "Termination Date").
4. Pursuant to the Commencement Date Agreement referenced above, the
Commencement Date was April 4, 2007; therefore, the Commencement Date Agreement is hereby
amended to provide that the initial term expiration date shall be April 3, 2107.
5. Section 4.01 of the Lease is hereby amended to provide that there shall be no rental
payments due pursuant to this Lease so that the leasehold (and subsequent subleases) shall be taxed
as real property pursuant to and in compliance with Florida Statute 196.199(2)(b). Therefore,
Exhibit D to the Lease is hereby deleted. Additionally, the definition of "Rent" in Article I ofthe
Lease is hereby deleted and notwithstanding anything contained in the Lease to the contrary there
shall be no annual base rent due. Lessee and/or Sublessee shall remain liable for the amounts set
forth in Article VI, Article VII, Article IX, Article X, Article XI, Article XII, of the Lease as well as
any and all obligations set forth in the Lease other than said annual base rent defmed in Section 4.01.
6. The effective date ofthe amendments set forth herein shall be July 19,2006 to reflect
the original intent of the parties; therefore, there shall be retroactive application.
7. Except as expressly modified by this Amendment, all terms and conditions of the
Lease remain in full force and effect, binding upon the parties.
8. Each party agrees that they have authority to sign this Agreement on behalf of each
party and represents and warrants that such person has the full right and authority to enter into this
Agreement on behalf of such party and to fully bind such party to the terms and obligations of this
Agreement.
2
IN WITNESS WHEREOF, the undersigned executed this First Amendment to Ground Lease
Agreement and Commencement Date Agreement this _ day of _, 2009.
LESSOR:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
By:
By:
, Mayor
, Deputy Clerk
Monroe County Attorney
Approved as to Form:
BY:~~ /0-(,-09
- Susan M. . sley, Assi tant County Attorney
STATE OF FLORIDA
COUNTY OF MONROE
BE IT KNOWN, That on the day of , two thousand and nine, before me, a
Notary Public in and for the State of Florida, County of Monroe, duly commissioned and sworn, personally
came and appeared , as Mayor of Monroe County Board of County
Commissioners, to me personally known or has produced as identification.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my seal of office
the day and year last above written.
[Seal]
NOTARY PUBLIC
3
LESSEE:
P ARK VILLAGE, LLC, a Florida limited
liability company by Old Town Key West
Development, Ltd., its Manager
WITNESSES AS TO LESSEE:
Signed, sealed and delivered
By:
Edwin O. Swift, III, General
Partner
Witness as to Lessee
Witness as to Lessee
STATE OF FLORIDA
COUNTY OF MONROE
BE IT KNOWN, That on the day of , two thousand and nine, before me, a
Notary Public in and for the State of Florida, County of Monroe, duly commissioned and sworn, dwelling in
the City of Key West, personally came and appeared EDWIN O. SWIFT, III, as General Partner of Old Town
Key West Development, Ltd., Manager of Park Village, LLC, a Florida limited liability company, to me
personally known or has produced as identification.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my seal of office
the day and year last above written.
[Seal]
NOTARY PUBLIC
4